You have just been handed a subpoena ordering you to appear for a deposition. You may be intimidated and, perhaps, frightened. Don’t worry, these reactions are common. This article will hopefully give you a better understanding of what to expect, how to conduct yourself during a deposition, and relieve some stress associated with the process.
What is a Deposition?
A deposition is part of the discovery process in a lawsuit. It is the sworn testimony of a person that is a party to the lawsuit or a person who is believed to hold information related to a lawsuit. With certain exceptions, an attorney in a lawsuit may take the deposition of any person whom they believe has knowledge pertinent to the facts and claims in the lawsuit. The deposition will often take place in an attorney’s office with the parties to the case, their respective attorneys, and a court reporter. A deposition may be recorded via video, audio recording, or both. The primary purpose of a deposition is to obtain information from the person testifying as to the events surrounding the subject of the lawsuit. Subject to only a few exceptions, the information sought may include, but is not limited to, eyewitness accounts, financial records, photographs, medical history, employment history, and any other information related to the facts or claims in the underlying lawsuit.
Preparation is the key to a successful deposition. Upon receiving notice that you are going to be deposed, immediately notify your attorney. If you do not have an attorney and need assistance finding an attorney, you can contact your local bar association for an attorney referral. A deposition requires intense concentration and can be extremely tiring. Be sure to get plenty of rest the night before your deposition. Your attorney will likely meet with you to give you an overview of what will happen during the deposition and go through expected questions. Unless instructed by your attorney, do not take it upon yourself to do any research or review any documents for your deposition.
Certain jurisdictions have time limits on the length of a deposition. In some cases, the attorney questioning you will give an approximate time frame as a professional courtesy. The length of the deposition may also depend on your responses. Your responses may open up new lines of questioning.
You should come to the deposition dressed as you would if you were testifying in court. If you are a professional you should wear business attire. If you don’t normally wear a suit and tie you should dress in nice casual clothing. Remember the opposing counsel is attempting to “size you up” as a witness, and you should try to give the best impression possible. If you have any questions about how to dress for your deposition ask your attorney.
Be Truthful and Concise
Be aware that you will be sworn in under oath to state “the truth, the whole truth, and nothing but the truth, so help you God.” Being sworn in under oath means that you are providing testimony under penalty of perjury. In other words, lying under oath may have legal consequences. Just be honest and you will should have no worries. Specifically, tell the truth to the best of your knowledge and be concise. Only answer the question raised. In many cases, your response will be a simple “yes” or “no.” Do not provide extra information or elaborate to try and help the questioning attorney understand you better. Do not speculate or guess when answering a question. Simply say “I don’t know” if you do not know the answer to a question or “I don’t remember” if you do not remember.
Only answer questions if the response comes from your own first-hand knowledge. If you are asked a question that requires you to speculate or make assumptions, your response should be “I don’t know.” However, the questioning attorney may ask that you provide an estimate. In general, an estimate can be given when referring to distances, times, dates, quantities, and the like. The difference between an estimate and a guess is that you have some basis for giving the estimate. If you are providing an estimate, you should state that in your response.
Take a few seconds and think through a question before responding. This serves two purposes. First, it will allow you to better analyze and respond to the question. There is no time limit for you to respond, so take as much time as you need (to a reasonable extent). Second, it will provide time for your attorney to state an objection if he or she has one. Attorneys may object to questions they believe are improper. Since there is no judge present at the deposition to rule on the objection, the attorney will state the objection for the record and the judge may make a ruling later if needed. You must typically respond to all questions. The exception is if your attorney makes an objection and instructs you not to answer. If this occurs, follow your attorney’s instruction and do not answer the question.
Typically, if you are respectful and conduct yourself in a professional manner, the questioning attorney will reciprocate. Although it may be difficult at the time, you should avoid reacting in anger or frustration. You should maintain the same manner of professionalism when you are off the record as well, whether before, during, or after the deposition. The questioning attorney will likely inform you at the start of the deposition, but if you need to take a break, simply ask the questioning attorney. Just avoid asking for a break with a question pending.
This article is meant to be utilized as a general guideline for preparing for a deposition. Nothing in this blog is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first. If you have questions about your particular legal situation, you should contact a legal professional.
Mark Turner can be reached at [email protected] or by phone at 440-571-7773.
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